PUBLIC HEARING AND ADOPTION OF AN ORDINANCE REVISING CHAPTER 3 OF THE NOVATO MUNICIPAL CODE RELATING TO ANIMAL CONTROL

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1 I-9 STAFF REPORT MEETING DATE: June 12, 2018 TO: FROM: City Council Regan M. Candelario, City Manager Laura McDowall, Management Analyst II 922 Machin Avenue Novato, CA / FAX 415/ SUBJECT: PUBLIC HEARING AND ADOPTION OF AN ORDINANCE REVISING CHAPTER 3 OF THE NOVATO MUNICIPAL CODE RELATING TO ANIMAL CONTROL REQUEST Hold a public hearing and adopt Ordinance 1640 amending Chapter 3 of the Novato Municipal Code to adopt the County of Marin animal control ordinance with revisions, and adopting and incorporating by reference Chapter 9 (in part) of Division 14 of the California Food and Agricultural Code and the fee schedule of the County of Marin for animal services. DISCUSSION Marin County and all of Marin's cities and towns provide animal services through a joint powers agreement. The cost of services is shared 30% by the County, with 70% apportioned among the member cities and towns. The County contracts with Marin Humane (MH), also known as the Marin Humane Society, to provide animal services on behalf of all jurisdictions. The City of Novato had historically adopted the County's animal control ordinance by reference in Chapter 3 of the Novato Municipal Code, including amendments thereto. By adopting the County's animal control ordinance by reference, the City delegated to the County the duty of providing animal control services within the City's limits which, in turn, are provided to the County (and through the County to the City) by contract with the Marin Humane Society. Because several animal control issues are unique to Novato and because certain inconsistencies existed between the City's approach to animal control and the County s animal control regulations, in 2008 the City Attorney and the City Manager recommended that the Council adopt its own, stand-alone animal control ordinance rather than incorporating the County's ordinance into the City's Municipal Code. On February 25, 2008 the Novato City Council adopted an ordinance amending Chapter 3 of the Novato Municipal Code to adopt the Marin County Animal Control ordinance, with revisions. Although different in some respects, the ordinance mirrored most of the County's animal control regulations and continued to delegate to the County (and, thus, to the Marin Humane Society) the responsibility of providing animal control services in Novato. The County has now adopted revised regulations and it is therefore necessary for the City to cc18_102 1

2 revise Chapter 3 of the Novato Municipal Code to likewise update the City's regulations. Ordinance 1640, the ordinance to revise Chapter 3 of the Novato Municipal Code, was introduced at the City Council meeting of May 8, Ordinance 1640 incorporates Chapter 9 (in part) of Division 14 of the California Food and Agricultural Code and the Marin County Fee Schedule by reference. In reference to ordinances which incorporate codes by reference, Government Code Section states After the first reading of the title of the adopting ordinance and of the title of the code to be adopted thereby, and of the title of the secondary codes therein adopted by reference, the legislative body shall schedule a public hearing thereon. Notice of the hearing shall be published pursuant to Section 6066 in a newspaper of general circulation in or nearest to the adopting local agency. Pursuant to Government Code Section and Section 6066, this public hearing was noticed in the Marin Independent Journal on May 29, 2018 and again on June 5, Ordinance 1640 will go into effect 30 days after adoption. Animal Control Ordinance Proposed Changes Marin is recognized as a leader in promulgating ordinances that protect animals from cruelty, neglect and abuse in addition to encouraging responsible pet guardianship. Historically, during negotiations with MH the parties discuss any needed or desired changes to Animal Control Ordinances to further these values or to clarify language in the Ordinance. The following is a summary of the proposed changes: Potentially dangerous and vicious dogs This change is required in order to be consistent with a recent change in State law. The revision removes dogs that were identified in convicted dog fighting cases as automatically being defined as dangerous without a hearing. MH advises that this has never been at issue in Marin previously, but the technical change is recommended to be consistent with State law. Rabies vaccinations - Veterinarian reporting requirements One proposed change would give veterinary hospitals and clinics additional time, increasing the deadline from 10 days to 30 days, to comply with rabies vaccine reporting requirements. The extended period may help increase compliance among Marin County veterinary clinics and hospitals. Another proposed change would establish home bite quarantine fees as part of the County s general fee schedule. This is recommended as a cleanup item to be consistent with how other County fees are managed. Exotic Animals There is a growing national trend to not use exotic animals for entertainment and education. The changes proposed by MH expand the list of prohibited wild and undomesticated animals allowed to be kept in Marin, as well as limiting those organizations that can exhibit exotic animals. The purpose of the changes includes the protection of public health and safety, protecting and recognizing the unique needs wild or exotic animals have, reducing inhumane training techniques, and decreasing the amount of administrative effort it takes to research and enforce specialized permit applications. The recommended changes will have no effect upon organizations qualified to handle wildlife, for instance the Marine Mammal Center in West Marin. The ordinance only goes into effect once all member cities and towns of the Marin Animal Services JPA adopt the ordinance to ensure uniform MH enforcement countywide. 2 2

3 Marin County Board of Supervisors Agreement with Marin Humane A new three-year agreement with MH was negotiated by representatives from the County Administrator's Office, the Executive Officer of the Marin General Services Authority, and Managers of the City of Larkspur and Town of Ross. The County Board of Supervisors approved the new three-year agreement with MH on March 27, 2018 and no further action from the Council is required. The agreement is a very similar contract to previous years with the following key changes and recommendations: Term - A three-year agreement for FY through FY Annual Cost Increase The contract increases the annual payment over the previous year by 4.0% in FY ; 3.0% in FY ; and 2.0% in FY The increases would be used to address staffing costs, make improvements to technology, including implementing a new dispatching software module, and improving an aging stray animal facility. Dog License Fees MH promotes and collects dog license fees. Historically, these fees were transferred to offset the jurisdictions costs of the animal control program. The Negotiating Team discussed a mechanism to better incentivize collections without risking the revenue presently received by jurisdictions. The recommendation included in the contract takes all dog license fee revenue over $300,000 annually (current baseline receipts) and allocates 60% of those additional collections to MH and 40% to member jurisdictions. This ratio acknowledges the resources incurred by Marin Humane to promote additional license purchases, as well as to process the increased number of licenses. Injured Animal Program The State-mandated Sick and Injured Animal Program requires that sick and injured animals be taken for veterinary care, and is presently handled outside of the existing MH contract. The County bills each jurisdiction for these costs where the animals are found. The new contract requires MH to cover all costs for sick and injured animals within the contract. This change, proposed by MH, will save resources among all parties through reduced administrative staffing costs. The monetary savings to jurisdictions would be approximately $4,000 per year. The agenda and supporting documents for the March 27, 2018 Marin County Board of Supervisors approval of the new agreement is available on the County of Marin s website at: r.php%3ffile%3dmarin_74650eaf4946b9285b545b1484e8cf0d.pdf%26view%3d1&embedded= true Marin County Board of Supervisors Animal Control Fee Changes In December of 2017, MH staff conducted a survey of neighboring counties such as San Mateo, San Francisco, Contra Costa, and Alameda, and determined that increases to Marin's fee schedule are both appropriate and consistent with these other jurisdictions. MH has confirmed 3 3

4 that the proposed fee increases do not exceed the cost of providing the associated services. The last such fee increase was in City and Town Managers in Marin were presented a summary of the tentative contract, ordinance changes, and fee increases and were in agreement with the proposals as recommended. The Marin County Board of Supervisors adopted Ordinance No at their meeting of April 10, 2018 establishing an updated fee schedule. Ordinance 3688 is available to view online at: FISCAL IMPACT There is no fiscal impact associated with adopting the ordinance amending Chapter 3 of the Novato Municipal Code; the new requirement for MH to cover all costs for sick and injured animals within the new contract approved by the Marin County Board of Supervisors is estimated to save jurisdictions approximately $4,000 per year. RECOMMENDATION Hold the public hearing and adopt the ordinance. ALTERNATIVES 1. Do not adopt the ordinance; provide direction to staff. ATTACHMENT 1. Ordinance

5 Attachment 1 I-9.1 CITY COUNCIL OF THE CITY OF NOVATO ORDINANCE NO AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NOVATO AMENDING CHAPTER 3 OF THE NOVATO MUNICIPAL CODE TO ADOPT THE COUNTY ANIMAL CONTROL ORDINANCE WITH REVISIONS, AND ADOPTING AND INCORPORATING BY REFERENCE CHAPTER 9 (IN PART) OF DIVISION 14 OF THE CALIFORNIA FOOD AND AGRICULTURAL CODE AND THE FEE SCHEDULE OF THE COUNTY OF MARIN FOR ANIMAL SERVICES THE CITY COUNCIL OF THE CITY OF NOVATO ORDAINS AS FOLLOWS: SECTION 1. Chapter 3 of the Novato Municipal Code is hereby amended to read as follows: Short Title. This Chapter shall be known and may be referred to in all proceedings as the Animal Control Ordinance Definitions. For the purposes of this Chapter, the following words and phrases are defined and shall be construed as hereinafter set forth unless it is stated a different meaning is intended. (a) (b) (c) (d) Animal Services Agency means that agency appointed as the Animal Services Provider for the County of Marin under the provisions of Section of the Marin County Code. Commercial Animal Establishment means any location where the business of grooming, buying, selling, bartering, training, renting or boarding of dogs, cats, wild animals, domestic animals or fowl is conducted. This definition shall not apply to: (1) The use of goats, sheep, or other animals in herding operations for the purposes of clearing brush and ground cover for fire control purposes; (2) Buying or selling livestock for agricultural purposes; (3) Livestock establishments; (4) Buying and selling of dogs by Dog Hobbyists; (5) Buying and selling of dogs by Ranch Dog Permittees; (6) Business activities of a duly licensed veterinary hospital; (7) Training facilities where Owners/Guardians are trained to handle their own pets; (8) County designated animal services provider. County means the County of Marin. Director means Chief Executive Officer of the Animal Services Agency or any person authorized to act on his/her behalf. ord

6 (e) (f) (g) (h) (i) (j) (k) (l) Dog means any animal that is a member of species canis familiaris four months old or older. Dog Hobbyist means any person who keeps upon any residential lot, within or adjoining a private residence, four or more dogs for personal, recreational and noncommercial purposes who has secured a permit for such activity in accordance with the provisions of this Chapter. Dog License means the license required to be annually issued for each individual Dog. Identified Stray Animal means an animal not in the immediate possession or control of a person which can be identified by means of a license, tag, microchip, tattoo or other visible, reliable means of identification and for which the Owner/Guardian can be determined. Owner/Guardian means any person who has the legal responsibility and rights of an Owner/Guardian after keeping or harboring an animal for 15 or more days, except a veterinarian or an operator of a kennel engaged in the regular course of their business. The use of the word guardian for all legal intent and purposes has the same meaning and effect as the term Owner/Guardian with respect to all federal, state, county and city law, current and/or as modified. Licensed Dog means any Dog for which the license for the current year has been issued and to which the tag is properly displayed. Ranch Dog Permittee means any person who owns or keeps within or adjoining a residence, building, lot or area which is zoned for agricultural uses, four or more Dogs for personal, recreational, or noncommercial purposes. Unidentified Stray Animal means an animal not in the immediate possession or control of a person which cannot be identified by means of a license, tag, microchip, tattoo or other visible reliable means of identification Licenses Required License Periods. Every Owner/Guardian of a Dog which is kept in the city shall procure a license for each such Dog, for each year, commencing with the date of the rabies vaccination of the dog and expiring the year following the date of issuance of such license. Such license shall be procured within thirty days after the day upon which the Dog is four months old, or within thirty days after the day upon which the dog, if over the age of four months, is first obtained by a resident of the City, or within thirty days of the first date that the Owner/Guardian of the Dog first becomes a resident of the City and thereafter shall be maintained on a current basis from year to year. Dog Owner/Guardians may, with proof of multiyear rabies vaccination, choose to obtain licenses for one, two or three years, with final expiration to coincide with the expiration of the rabies vaccination Rabies Vaccinations, Veterinarian Reporting Requirements. (a) Whenever the laws of this state require vaccination of dogs against rabies, no license shall be issued for any Dog required to be vaccinated until satisfactory written evidence of compliance under such law is provided. (b) All cats shall be vaccinated against rabies. Any person in possession, control, or Owner/Guardianship of any cat shall have that cat vaccinated against rabies. 2 6

7 (c) Any veterinarian operating either at an established place of business or at a mobile clinic shall provide a copy of a rabies vaccination certificate for any cat or Dog vaccinated by him/her to the Animal Services Agency within thirty days of vaccination Confinement and Quarantine. The Owner/Guardian of a quarantined animal shall pay a fee as established in accordance with this section toward the animal services costs in providing and insuring that the animal is properly quarantined. The schedule of fees for animal services established by the County of Marin, as it may be amended from time to time, is hereby adopted and incorporated by reference herein whenever reference is made to the County of Marin fee schedule throughout this Chapter.. If any person fails or refuses to obey any lawful order for quarantine of an animal for rabies observation, any animal services officer may impound the animal for such quarantine at additional expense to the Owner/Guardian at the rate as may be established by the County of Marin fee schedule. Quarantine fees are payable within thirty days of issuance of an invoice. Payment is delinquent if not received within sixty days of issuance of the notice License fee. (a) A dog license fee shall be imposed on all Dogs. The license fee for Dogs, which have not been sterilized shall be as established by the County of Marin fee schedule (b) The license fee for Dogs which have been sterilized shall be as established by the County of Marin fee schedule. The fee is due and payable with the issuance of a license as required in this Chapter Delinquent License Penalty. Any Owner/Guardian failing to procure and pay for such license within the period allowed in this Chapter shall pay a delinquent penalty as established by the County of Marin fee schedule. The delinquent penalty may be waived where failure to pay is due to reasonable cause and circumstances beyond the control of the Dog Owner/Guardian which shall be determined by the Animal Services Agency or the County Administrator s office. Any person dissatisfied with a determination denying waiver of the delinquent penalty shall be entitled to a hearing which shall be conducted pursuant to the provisions of Section Duplicate License Tags. If a license tag is lost, a duplicate tag may be acquired by the payment of a fee as may be established by the County of Marin fee schedule Display of License Tags. The license tag shall be attached securely to a collar or harness or other suitable device on the Dog, for which issued, at all times that the Dog is not on the private property of the Owner/Guardian. The person in control of the Dog shall show the license certificate or tag upon demand by a representative of the Animal Services Agency at any time Exceptions. Any Dog bred, raised or providing service as a guide or service dog, is exempt from the license fee but is not exempt from being licensed or from any required vaccination. The provisions of Section shall not apply to any dog in the custody or care of a nonresident of the City or temporarily therein for a period not exceeding thirty days. ord

8 Animal Services Officer Appointment. The Marin Humane Society has been appointed as the Animal Services Agency for the County of Marin by the Board of Supervisors of the County, and shall appoint suitable persons to act as Animal Services Officers. All Animal Services Officers shall, for the purpose of enforcing this Chapter, be deemed to be peace officers Animal Services Agency and Animal Services Officers Powers and Duties. The powers and duties of the Animal Services Agency and Animal Services Officers shall be as follows: (a) To enforce all provisions of this Chapter and all the laws of the state of California relating to the care, treatment, and impounding of animals, and specifically to issue citations and to make arrests for violations of the provisions of this Chapter and related state laws; (b) To provide an animal shelter for all animals which are subject to impoundment. Animals shall be provided with humane care and treatment, including veterinary care when appropriate, throughout the duration of their impoundment consistent with state laws and local ordinances; (c) To take up, impound and safely keep any animals where authorized under the provisions of this chapter or the laws of this state; (d) To collect any costs or charges hereinafter provided in this chapter for the impounding and keeping of any animal; (e) Where authorized under the provisions of this Chapter or the laws of this state, to enter upon any premises upon which any animal is kept for the purpose of taking up, seizing or impounding of any animal or for the purpose of determining whether such animal is licensed or is violating the provisions of this Chapter; (f) To euthanize any animal lawfully impounded which by reason of injury, disease or temperament is unsuitable for adoption placement; (g) To enter upon any private or public property in order to pick up and dispose of any dead animal; (h) To destroy or dispose of any animal where authorized pursuant to the provisions of this chapter; (i) (j) To make determinations in accordance with the provisions of this Chapter; To perform any and all services related to public records (handling, retention and availability) in the same manner as employees of the County of Marin regarding the handling of what would be public records if prepared, retained or distributed by County employees Hearings. (a) The County Administrator of the County of Marin or his/her designee, is authorized to conduct hearings in all cases authorized by the provisions of this Chapter. This shall include, but not be limited to, all permit denials, permit revocations or refusals to renew permits authorized under this Chapter. Written notice of the time and place of the hearing shall be given to the animal Owner/Guardian, permittee or permittee applicant at least ten days prior to the date set for hearing, unless the animal owner/guardian, permittee or permittee applicant expressly requests, in writing, that the hearing be set for an earlier 4 8

9 date, and the Animal Services Agency agrees to do so. Service of the notice shall be made in accordance with the provisions of Section of the Marin County Code. If the Owner/Guardian of the affected animal, permittee or permittee applicant fails to appear at the hearing, the hearing shall nevertheless proceed, and an appropriate order shall be issued in accordance with the provisions of this Chapter. (b) (c) (d) ADMINISTRATIVE FEES. The administrative hearing officer shall have the ability to impose administrative hearing fees authorized under the County of Marin fee schedule. The administrative hearing officer may impose the fees based upon the complainant s, or business owner s or animal Owner/Guardian s culpability for causing administrative expenses to the Animal Services Agency s program. At the administrative hearing, the hearing fee shall be in lieu of the imposition of any applicable statutory fine. In a de novo appeal to the Superior Court, both administrative expense fees as well as statutory penalties may be imposed upon the animal owner/guardian as deemed appropriate. Criminal restitution, damages and/or injury awards are the domain of the superior courts and are not available by way of the administrative hearing process. In any hearings other than ones involving the determination of the status of a potentially dangerous animal or vicious animal, the decisions of the hearing officer shall be final but subject to review by the Superior Court pursuant to the provisions of CCP section De novo appeal of hearing officer decisions to the Superior Court is only available in the case of potentially dangerous dog or vicious dog hearings. SANCTIONS HEARINGS. If the animal Owner/Guardian does not appeal the orders of the hearing officer in a potentially dangerous or vicious dog case to the Superior Court within the time period prescribed in this Chapter, the hearing officer s orders shall be binding. In all other administrative hearings, the decisions of the hearing officer are final without further appeal to the Superior Court. Failure to abide by the hearing officer s orders shall, upon petition by the Animal Services Agency, subject the animal Owner/Guardian (or commercial animal establishment-related licensee or other permitees/licensees) to attend a noticed sanction hearing where further regulatory actions to protect the public health and safety may be considered and imposed. Notice requirements shall be the same as in the case of the initial hearing before the hearing officer. (See (a) above.) The sanctions that may be imposed include any reasonable regulatory actions to preserve public health and safety including, but not limited to the destruction of the animal, or in the case of a permit of license, loss of said permit or license. Lesser sanctions may be imposed provided the health and safety of the public is not unreasonably placed at risk. Sanctions hearings shall be recorded or reported, and shall be final. The hearing officer shall have the authority to impose additional administrative fees for the expenses related to the sanctions hearing. The orders from such sanctions hearings shall be subject to review by the Superior Court pursuant to the provisions of CCP section Any Owner/Guardian failing to abide by the final orders of the hearing officer within the period allowed within the orders or under law shall pay a civil administrative penalty in ord

10 the amount of $500. The civil administrative penalty may be waived where failure to perform the required order(s) is/are due to reasonable cause and circumstances beyond the control of the Owner/Guardian which shall be determined by the hearing officer. Any person dissatisfied with a hearing determination denying waiver of the civil administrative penalty may petition for review by the Superior Court pursuant to the provisions of CCP section Disposition of Animals by Animal Services Agency. Except where otherwise provided in this Chapter, the Animal Services Agency shall keep any animal impounded for violation of the provisions of this Chapter or relinquished for the period of time hereinafter specified and shall determine the final disposition of the same in accordance with the following provisions: (a) (b) (c) (d) (e) Unidentified Stray Animals. All impounded Unidentified Stray Animals shall be held for redemption for five working days. The stray holding period shall not include the day upon which the animal was impounded, days the animal shelter is closed or holidays. At the end of the stray holding period, the Animal Services Agency shall determine the final disposition of the animal, which may include adoption, redemption or euthanasia. Identified Stray Animals. All impounded Identified Stray Animals shall be held eight working days. The stray holding period shall not include the day upon which the animal was impounded, days the animal shelter is closed or holidays. At the end of the stray holding period, the Animal Services Agency shall determine the final disposition of the animal, which may include adoption, redemption, or euthanasia. The Animal Services Agency shall notify the Owner/Guardian by mail at the last known address of the animal being impounded. Notice of impoundment shall be given to the animal Owner/Guardian within 24 hours of impoundment. Release of dogs and cats. All dogs shall be released to their Owner/Guardians with a current license and proof of a current rabies vaccination. All cats shall be released to their Owner/Guardians with proof of a current rabies vaccination and proof of compliance with section 3-4. Sterilization of Animals Released for Adoption. No Dog or cat shall be released for adoption without being sterilized. The Animal Services Agency shall follow all laws of the State of California concerning holding periods and final disposition of animals Redemption of impounded animals. Except where redemption is not permitted by this Chapter, redemption of an impounded animal by the Owner/Guardian shall be made by exhibiting to the Animal Services Agency proof of the Owner/Guardian s identity and any required license certificate, tag, or other satisfactory proof of custody. All charges provided for under Section must be paid to the Animal Services Agency prior to the animal being redeemed. If such animal is released to a person other than the Owner/Guardian, the Owner/Guardian of such animal may, at any time within thirty days, request the Animal Services Agency to return the animal to the Owner/Guardian. All costs of impoundment, including charges for boarding, shall be collected prior to the animal being released to the Owner/Guardian. No person may redeem an animal under this section if he or she was given 6 10

11 written notice of such impoundment by the Animal Services Agency and failed for a period of eight working days after the mailing of such notice to redeem such animal from impoundment Fees for redemption, placement, surrender. (a) Redemption Fees. No animal may be released by the Animal Services Agency to the Owner/Guardian until all appropriate charges have been paid. The redemption fee for an impounded animal shall be as established by the County of Marin fee schedule. (b) Boarding Fees. The Animal Services Agency shall collect boarding fees for dogs and cats as may be established by the County of Marin fee schedule. Fees for livestock shall be collected pursuant to Section (c) Veterinary Fees. The Animal Services Agency shall collect from the Owner/Guardian all fees associated with veterinary care provided to any impounded animal. (d) Surrender. Animals surrendered by their Owner/Guardians subsequent to impoundment for a violation of this chapter or any provisions of state law shall not relieve the Owner/Guardian of the obligation to pay such charges as set forth by the County of Marin fee schedule, prior to such surrender Dogs at Large in Public Areas. It is unlawful for the Owner/Guardian or person having control of any dog to permit the same, under any circumstances, to be off leash in, on or about any public property within the City, including, but not limited to, any park, school, school grounds or open space area, except public property posted with signs permitting dogs to be off leash. Every dog found running at large in violation of the provisions of this section shall be immediately seized and impounded. Any duly authorized peace officer or Animal Services Officer shall be entitled to take such other action as may be reasonably necessary for the protection of public health and safety Dogs at Large on Certain Private Lands. It is unlawful for the Owner/Guardian or person having control of any dog to suffer or permit the same to be upon the lands of another without the consent of the owner or person entitled to the use or possession of such lands Dog Control by Responsible Person. (a) Dogs shall at all times be kept under the immediate control and direction of a competent, responsible person who is capable of controlling such an animal. Any dog which is not subject to such control and direction may be seized and impounded. (b) Every Owner/Guardian or possessor of a dog shall at all times prevent such dog from biting or physically harassing any person engaged in a lawful act and from interfering with the lawful use of public or private property. (c) Every Owner/Guardian or possessor of a dog shall at all times prevent such dog from causing injury to another domestic animal while such domestic animal is lawfully upon public or private property and which results in veterinarian treatment or death. (d) Every Owner/Guardian or possessor of a dog shall desist from commanding or provoking such dog to attack, sic or threaten a person when such person is peaceably and lawfully upon public or private property. ord

12 Prohibition of Habitual Animal Noise Which Unreasonably Disturbs the Peace. (a) Subject to the provisions of subsections (b), (c), and (d) of this section, it is unlawful for any person to suffer or permit any dog, cat, fowl, or other animal to habitually bark, yelp, howl or create noise in such a manner which unreasonably disturbs the peace of any person(s). Such repeated acts after the receipt of a request to address the disturbance of the peace shall constitute a public nuisance. (b) Any person who shall keep or permit to remain on any premises, an animal which disturbs the peace of any person in the manner set forth in subsection (a) of this section shall be guilty of an infraction for a first offense and for a subsequent second offense. Any person found in violation of this subsection for a third or additional offense shall be guilty of a misdemeanor. An animal kennel regulated by a use permit under the provisions of the Novato Municipal Code shall not be subject to the provisions of this section. This section shall not apply to customary animal noises of livestock, horses or other animals kept for agricultural activities in areas including but not limited to farms, ranches and stables which are zoned or legally permitted for such purposes. (c) Except as otherwise provided in subsection (d) of this section, where the animal Owner/Guardian is present and available on the premises, police officer or sheriff will notify the keeper of the offending animal of the noise violation and direct that such violation be abated. If a second complaint is received from any person within thirty days of the notice of complaint of an additional violation by the animal, then a citation may be issued. If an animal creates noise, but not to the extent of a half hour of continuous noise, and the Owner/Guardian is not present at the premises, a written notice shall be issued upon a first complaint that a further violation will result in the issuance of a citation. Written notice shall be sufficient by securely posting the notice upon the door of the premises where the animal is kept. Whenever possible, the police officer or sheriff may recommend the services of county mediation to the complainant and the Owner/Guardian or person in possession of the animal as a means of resolving the animal nuisance noise. If mediation is refused by either party or is unsuccessful at the end of the thirty business days, then the direction that violation be abated shall remain. (d) If the animal Owner/Guardian of the offending animal is unavailable, the police officer or sheriff may issue a citation with a first complaint if it is determined, after investigation of the complaint and interview of the complainant, that the noise created by the animal has persisted for more than one half hour and cannot be abated or quieted so that it continues to disturb the peace of the complaining person(s). The police officer or sheriff may in addition make a referral to Animal Services so an investigation may ensue as to whether the animal should be taken into protective custody. The animal may be taken into protective custody by Animal Services for animal Owner/Guardian abuse, neglect, or any other grounds within their authority. An animal placed under protective custody under this section may be redeemed by the Owner/Guardian provided there is presented to the Animal Services Agency proof of the Owner/Guardian s identity and any required license certificate or license tag or other satisfactory proof of Owner/Guardianship and by paying the charges referenced under Section and the fees that may be established by the County of Marin fee schedule. 8 12

13 (e) The Owner/Guardian of an animal taken into protective custody under this section shall be entitled to a hearing conducted by a hearing officer designated by the County Administrator of the County of Marin or his/her designee pursuant to the provisions of Section (f)(4). The hearing shall be conducted for the purpose of determining whether the taking of the animal into protective custody was proper. The hearing shall be held within ten business days following the taking of the animal into custody provided such Owner/Guardian files a written request for a hearing within five business days following written notice. The hearing shall be conducted in accordance with the provisions of Sections (f)(7), (8), (9) and (10). Unless the hearing officer otherwise determines, the Owner/Guardian is liable for all charges related to such taking of the animal into protective custody Prohibition of Animals Causing Damage to Public or Private Property. It is unlawful to suffer or permit any animal to trespass on private or public property so as to damage or destroy any property or thing of value, or so as to commit any other act dangerous to public health or safety, and any animal committing such an act is a public nuisance Potentially Dangerous and Vicious Dogs. (a) Except as otherwise provided under the provisions of subsections (b) through (e) of this section, the provisions of Chapter 9, Articles 1 through 5, Sections through and any amendments thereto exclusive of Sections 31602, 31603, and of the Food and Agricultural Code are adopted and incorporated by reference herein. The hearing provisions set forth in subsection (e) below shall be in addition to the provisions set forth above in Section (b) Potentially dangerous dog means any of the following: (1) Any dog which, when unprovoked on two separate occasions within the prior thirty-six month period, engages in any behavior that requires a defensive action by any person to prevent bodily injury when the person and the dog are off the property of the Owner/Guardian or keeper of the dog; (2) Any dog which, when unprovoked, bites a person causing a less severe injury than as defined in Section of the California Food and Agricultural Code; (3) Any dog which, when unprovoked has killed, seriously bitten, inflicted injury or otherwise caused injury attacking a domestic animal off the property of the Owner/Guardian or keeper of the dog. (4) Any dog that has been deemed by another governmental jurisdiction as potentially dangerous, or dangerous, or similar designation. (c) Vicious dog means any of the following: (1) Any dog which, when unprovoked, in an aggressive manner, inflicts severe injury on or kills a human being; (2) Any dog previously determined to be and currently listed as a potentially dangerous dog which, after its owner/guardian has been notified of this determination, continues the behavior described in Section (b) or is ord

14 (d) (e) maintained in violation of Section 31641, or of the California Food and Agricultural Code. (3) Any dog that has been deemed by another governmental jurisdiction as vicious or similar designation. (4) Any dog which has engaged in any aggressive behavior that demonstrates that the dog represents a clear and present substantial danger to public health or safety and that due to substantial risk to public health or safety it is unlikely that the dog could be safely maintained. Severe injury means any physical injury directly caused by a dog attack that results in muscle tear(s), puncture(s), dislocation(s), broken bone(s) or disfiguring laceration(s), or which requires the suturing of a wound, corrective or cosmetic surgery and hospitalization for any of the aforementioned conditions. A hearing on whether a dog shall be declared potentially dangerous or vicious shall be conducted in the following manner: (1) If the Director has investigated and determined that there exists probable cause to believe that a dog is potentially dangerous or vicious as defined by this section, a hearing shall be conducted. The Director shall prepare a petition specifying the basis as to why the dog is potentially dangerous or vicious. (2) A documented complaint must be received from a member of the public which serve as the evidentiary basis for the Director to find probable cause shall be sworn to and verified by the complainant and shall be attached to the petition. (3) Prior to commencement of a potentially dangerous dog hearing and if the allegations of the petition indicate that the dog is potentially dangerous as defined under Section (b), the County Administrator of the County of Marin or his/her designee may offer in writing mediation services as an alternative to a hearing provided both the complainant and the Owner/Guardian agree in writing to mediation. Mediation must be concluded within thirty days of the offer to mediate. If mediation is refused or is unsuccessful, then the matter shall be referred to a hearing under subsection (e)(1) of this section. (4) The County Administrator or his/her designee shall designate a hearing officer from a panel of up to five persons whose membership shall be designated by the Board of Supervisors of the County of Marin. Hearing officer applicants shall have had a minimum of five-years experience as a practicing attorney and prior experience in administrative, arbitration or mediation hearings. Prior experience in care and control of animals shall also be considered but is not necessary. The hearing officer shall conduct a hearing as described in section on whether a dog shall be declared potentially dangerous or vicious. The hearing officer shall be compensated for the actual hours devoted to the hearing and its determination at the County approved hourly rate for said services. (5) The County Administrator or his/her designee shall provide written notice to the Owner/Guardian of the specific behavior of the dog alleged in the petition and the date upon which a hearing will be held to consider the petition. The hearing shall be held within the time limits set forth by California Food and Agricultural Code Section or any amendments thereto. The notice shall advise the 10 14

15 Owner/Guardian of the consequences of a finding of potentially dangerous or vicious. The hearing shall be open to the public and the hearing officer may admit into evidence all relevant evidence, and exercise the full scope of authority set forth in Food and Agricultural Code Section Service of the notice shall be made in accordance with Section of the Marin County Code. Where the Owner/Guardian s address of any dog is unknown, notice of the hearing shall be given by posting the same in the office of the Director and by publication in a newspaper of general circulation. Notice shall then be deemed given on publication of the notice. (6) A hearing may be continued if the hearing officer deems it necessary and proper or upon a showing of good cause. (7) The time for hearing and the hearing provisions of subsection (e)(5)(i) of this section shall be stayed if mediation services are offered pursuant to the provisions of subsection (e)(3) of this section. The time for hearing and the hearing provisions of this subsection shall recommence at the date the County Administrator of the County of Marin or his/her designee has determined in writing that mediation has not been accepted or has been unsuccessful. (8) Complaint(s) from the public serve as the evidentiary basis for the Director to prepare a petition. At least one of the complainants or his or her designee in the matter must appear and testify at the hearing or the complaint shall be dismissed. (9) If the Owner/Guardian fails to appear at the hearing, the hearing shall nevertheless proceed and an appropriate order shall be issued. (10) The hearing officer shall consider all relevant responsible evidence without regard to the formal rules of evidence, including circumstances of mitigation, and the record of any prior violations by the Owner/Guardian. (11) All witnesses shall testify under oath or affirmation. The oath shall be administered by the hearing officer. The hearing officer may, when appropriate, request the production of oral or documentary evidence which is reasonably necessary and relevant to conduct a hearing. All proceedings shall be tape recorded. (12) The hearing officer shall issue a written determination based upon a preponderance of the evidence, which shall be mailed to the Owner/Guardian within seven days after the hearing is completed. A determination that a dog is potentially dangerous or vicious is subject to de novo review by the Superior Court. (13) If an animal is found to be potentially dangerous or vicious by a preponderance of the evidence, the animal shall be so designated on the records of the animal services agency. Such a designation shall be considered in future determinations involving the animal and/or Owner/Guardian. (14) The Owner/Guardian of a dog for which a potentially dangerous or vicious dog petition has been issued may irrevocably waive his right to a hearing and any further appeal under California Food and Agricultural Code Section and accept all conditions, sanctions and penalties set forth in California Food and Agricultural Code Sections 31641, and 31643,. The County Administrator ord

16 of the County of Marin or his/her designee will mail a waiver form to the dog Owner/Guardian. The waiver must be signed by the dog Owner/Guardian and received by the County Administrator or his/her designee within thirty days from the date of agreement to waive or a hearing will be scheduled within thirty days of the agreement to waive. (15) Obligations for the Owner/Guardian of dogs deemed potentially dangerous. (i) In accordance with the provisions of California Food and Agricultural Code Section 31641, the Owner/Guardian of a potentially dangerous dog shall, in addition to the regular licensing fee, pay to the Animal Control Agency an annual fee as may be established by the County of Marin fee schedule for the increased costs of maintaining the records of the dog. (ii) Within 30 days of the determination that dog is potentially dangerous, the Owner/Guardian of the animal shall have the dog sterilized and deliver proof of sterilization of the animal to the Animal Services Agency. (iii) Within 30 days of the determination that a dog is potentially dangerous, the Owner/Guardian shall provide a secure and humane enclosure for the animal on the Owner/Guardian s property. The animal must be confined in a securely enclosed and locked pen or structure, suitable to prevent the entry of young children. Such pen or structure shall be constructed such that the animal cannot climb, dig, jump or otherwise escape of its own volition. (iv) All dogs found potentially dangerous shall be maintained under immediate control of a responsible adult by a substantial leash appropriate for the size of the dog and no more than six feet in length when off of the property of the Owner/Guardian. (v) The Owner/Guardian of a dog found potentially dangerous under Section (b), who has no additional violations of any of the provisions of this Chapter, within a thirty-six-month period from the date of designation as potentially dangerous, shall be removed from the list of potentially dangerous dogs by the Director. The dog may be, but is not required to be, removed from the list of potentially dangerous dogs prior to the expiration of the thirty-six-month period if the Owner/Guardian of the dog demonstrates to the Director that changes in circumstances or measures taken by the Owner/Guardian, such as training of the dog, have mitigated the risk to public safety. (16) Obligations for the Owner/Guardian of a dog deemed vicious. (i) (ii) The Owner/Guardian of a dog determined to be vicious shall, if not subject to destruction, in addition to the regular licensing fee, pay to the Animal Control Agency an annual fee as may be established by the County of Marin fee schedule The Owner/Guardian of a dog determined vicious shall, if not subject to destruction, at his/her own expense, have the vicious animal registration number assigned to the dog tattooed upon the dog s left ear or, if the left ear is not available, on the left inner thigh, by a licensed veterinarian or a 12 16

17 (iii) (iv) (v) (vi) person trained, authorized and licensed to do business as an animal tattooist. As an alternative to tattooing, an Owner/Guardian may have a microchip injected beneath the skin, and between the shoulder blades of the animal by a licensed veterinarian. The Owner/Guardian shall provide proof satisfactory to the Animal Services Agency of such tattooing or microchipping within thirty days of the vicious determination. Upon request by the animal services agency, the owner/guardian of a dog determined to be vicious shall, if it is not subject to destruction, present said animal at the Animal Services Agency and allow photographs and measurements of the animal to be taken for purposes of identification. Within 30 days of vicious dog determination, the Owner/Guardian of the dog, if it is not subject to destruction, shall provide proof to the Animal Services Agency that the dog is contained in a secure and humane enclosure for the animal on the owner s property. The animal must be confined in a securely enclosed and locked pen or structure, suitable to prevent the entry of children or unauthorized persons. Such pen or structure shall be constructed such that the animal cannot climb, dig, jump or otherwise escape. The pen or structure shall be constructed with sufficiently strong materials and shall have a top that is secured to the floor and sides of the enclosure. Within 30 days of the determination that a dog is vicious, the owner/guardian of the dog, if it is not subject to destruction, shall provide proof of sterilization of the dog to the Animal Services Agency. The Owner/Guardian of a dog found vicious under Section (c)(3), who has no additional violations of any of the provisions of this Chapter, after a thirty-six-month period from the date of designation as vicious, may apply to the Director to remove the animal from the list of vicious dogs. The Director shall have the discretion to remove the dog from the list of vicious dogs upon proof of the successful completion of at least eight weeks of formal obedience training, other similar evidence of training, or other rehabilitative efforts designed to mitigate the risk to public safety. (17) Regulatory Measures in addition to those under State Law: The administrative hearing officer shall have the authority to impose any of the regulatory actions authorized under the California Food and Agricultural Code and this Chapter. To the extent justified by the circumstances, the administrative hearing officer shall have the authority to impose additional regulatory restrictions that have a reasonable nexus to the circumstances of the case which may not be adequately addressed by the normal statutory remedies. Such measures shall be undertaken in the interests of public health and safety, and may include, but not be limited to the following: 1.) Destruction of the dog 2.) Muzzling of the dog ord